Noonan Services Ltd and Others v Labour Court

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kearns
Docket NumberRECORD NUMBER 957JR/2003
Date25 February 2004

[2004] IEHC 42

THE HIGH COURT

RECORD NUMBER 957JR/2003
NOONAN SERVICES LTD & ORS v. LABOUR COURT

BETWEEN

NOONAN SERVICES LIMITED, ADVANCE CLEANERS IRELAND LIMITED, AILESBURY CONTRACT CLEANING LIMITED, CAGNEY MAINTENANCE SERVICES LIMITED, CORPORATE PERSONNEL SERVICES LIMITED, FM CLEANING SERVICES LIMITED, GROSVENOR CLEANING SERVICES, HOURICAN HYGIENCE SERVICES LIMITED, ISS IRELAND LIMITED, KNIGHTS CLEANING SERVICES LIMITED, MAYBIN PROPERTY SUPPORT SERVICES (IRL), MOORE ENTERPRISES LIMITED, OCS ONE COMPLETE SOLUTION LIMITED, PROFESSIONAL CONTRACT SERVICES LIMITED, SCHORMAN CONTRACT CLEANING SERVICES LIMITED, GROUP 4 FALCK SUPPORT SERVICES LIMITED, MCKECHNIE CLEANING SERVICES LIMITED, COPORATE CLEANING SERVICES, A & M CLEANING SERVICES
APPLICANTS

AND

THE LABOUR COURT
RESPONDENT

AND

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU)
NOTICE PARTY

Citations:

INDUSTRIAL RELATIONS ACT 1990 S48

EMPLOYMENT REGULATION ORDER (CONTRACT CLEANING (CITY & COUNTY OF DUBLIN) JOINT LABOUR COMMITTEE) 2003 SI 353/2003 PART V(I)

EMPLOYMENT EQUALITY ACT 1998 S6

INDUSTRIAL RELATIONS ACT 1946 S35

INDUSTRIAL RELATIONS ACT 1946 S42(1)

INDUSTRIAL RELATIONS ACT 1946 S44

INDUSTRIAL RELATIONS ACT 1946 S45

INDUSTRIAL RELATIONS ACT 1946 S45(1)

INDUSTRIAL RELATIONS ACT 1990 S49

EMPLOYMENT EQUALITY ACT 1998 S6(2)

EMPLOYMENT EQUALITY ACT 1998 S6(2)(A)

EMPLOYMENT EQUALITY ACT 1998 S8(1)

EMPLOYMENT EQUALITY ACT 1998 S8(6)

EMPLOYMENT EQUALITY ACT 1998 S9(1)

EMPLOYMENT EQUALITY ACT 1998 PART III

EMPLOYMENT EQUALITY ACT 1998 S18

EMPLOYMENT EQUALITY ACT 1998 S19(1)

EMPLOYMENT EQUALITY ACT 1998 S19(4)

EMPLOYMENT EQUALITY ACT 1998 S19(5)

EMPLOYMENT EQUALITY ACT 1998 S22(1)

EMPLOYMENT EQUALITY ACT 1998 S86(1)

EMPLOYMENT EQUALITY ACT 1998 S86(2)

INDUSTRIAL RELATIONS ACT 1990 S48(5)

RSC O.84 r21(1)

O'REILLY V MACKMAN 1982 2 AC 237

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

R V STRATFORD-UPON-AVON DISTRICT COUNCIL EX-PARTE JACKSON 1985 1 WLR 1319

DEKRA EIREANN TEO V MIN ENVIRONMENT 2003 2 IR 270 2003 2 ILRM 210

RSC O.84(A) r4

IRISH TAKEOVER PANEL ACT 1997

HOUSING ACT 1966 S78(1)

ROADS ACT 1993 S49

ROADS ACT 1998 S51

ENVIRONMENTAL PROTECTION AGENCY ACT 1992

SLOAN V BORD PLEANALA 2003 2 ILRM 61

CUSSEN, STATE V BRENNAN 1981 IR 181

R V HERROD 1976 QB 540

Synopsis:

JUDICIAL REVIEW

Delay

Application for leave - Whether there had been such delay as to deprive applicants of remedy of judicial review - Number of parties affected - Rules of the Superior Courts, O. 84, r. 21(1) (2003/957JR - Kearns J - 25/2/2004)

Noonan Services Ltd v The Labour Court

Facts: The applicants applied for leave to apply for judicial review to challenge the legality of two employment regulation orders made by the Labour Court pursuant to s. 48 of the Industrial Relations Act 1990 which provided for minimum rates of remuneration and conditions of employment for workers in the contract cleaning sector. The application seeking leave was made a full 5 months after the making of the two regulation orders and 5 months after the applicants first threatened judicial review proceedings.

Held by Kearns J. in refusing the relief sought that the delay in moving the judicial review application was fatal to the applicants’ case. The fact that those affected by the delay in seeking judicial review numbered in thousands required the court to adopt an extremely strict approach. A mistaken apprehension of the law or reliance on some other procedures to bring about the relief sought could never justify in the case of these applicants a failure to act promptly.

Reporter: R. W.

Mr. Justice Kearns
1

These judicial review proceedings are brought by the applicants to challenge the legality of two employment regulations orders dated 28th July, 2003, which were made by the Labour Court pursuant to s. 48 of the Industrial Relations Act, 1990and which provide for minimum rates of remuneration and conditions of employment for workers employed in the contract cleaning sector.

2

“Contract cleaning” in this context means the cleaning of premises by companies engaged in whole or in part in the provision of cleaning and janitorial services in establishments such as hospitals, offices, shops, factories, stores or similar establishments on a contract basis.

3

While two orders were made by the Labour Court on 28th July 2003, one of which related to operations in Dublin and the other which related to the remainder of the country, the same points of legal challenge arise in relation to both orders.

4

The essence of the applicants case is that, insofar as part V of the employment regulation orders (EROs) provides that overtime should be paid to part-time workers after completion of their “contract hours” if these are less than 39 hours (being the normal hours worked by full-time workers), the said orders discriminate against full-time workers in an unreasonable, oppressive and arbitrary manner.

5

By order dated 19th December 2003, this court granted leave to the applicants to bring judicial review proceedings seeking a variety of reliefs which, however, have now been netted down at this hearing to the following:-

6

(a) a declaration that part V of the employment regulation order dated 28th July 2003 purporting to regulate the conditions of employment relating to overtime of workers in the terms made wasultra vires the respondent on the grounds of unreasonableness and is thus invalid and of no effect.

7

(b) a declaration that part V of the employment regulation order dated 28th July 2003, insofar as it purports to provide that overtime should be paid after “contract hours” if these are less than 39 hours discriminates against full-time workers on the grounds of gender contrary to the provisions of the Employment Equality Act,1998.

8

(c) a declaration that the decision of the respondent to make employment regulation orders giving effect to certain re-submitted proposals was, in the absence of an oral hearing sought by the applicants, in breach of the principles of natural and/or constitutional justice and/or fair procedures and was in consequenceultra vires the respondent, invalid and of no effect.

9

(d) a declaration that the terminology of Part V of the employment regulation order which contains certain provisions in relation to payment of overtime at weekends is so uncertain and vague as to warrant a declaration of invalidity having regard to the fact that non compliance with the terms of the order could give rise to a criminal prosecution.

10

The respondent and notice party contest the applicants entitlement to all or any of the reliefs sought and, in particular, argue that the application should fail on grounds of the delay in seeking relief from the court.

11

Section 35 of the Industrial Relations Act,1946authorised the Labour Court to establish joint labour committees, either on the application of a trade union or any organisation representative of a group of employers.

12

Section 42 (1) of the Industrial Relations Act,1946provides:-

"…a joint labour committee may submit to the Court proposals for fixing the minimum rates of remuneration to be paid either generally or for any particular work to all or any of the workers in relation to whom the committee operates, and such proposals may provide for a minimum weekly remuneration for all or any of such workers."

13

Section 48 of the Industrial Relations Act,1990sets out provisions for proposals for the making of employment regulation orders as follows:

14

2 "(1) Where a joint labour committee has formulated proposals for an employment regulation order, the committee shall publish a notice stating-

15

(a) the place where copies of the proposals may be obtained;

16

(b) that representations with respect to the proposals may be made to the committee within the period of twenty one days after the date of such publication

17

(2) The joint labour committee, having considered any representations made to it in accordance withsubsection (1), may submit to the Court such proposals as it thinks proper for an employment regulation order

18

(3) When proposals for an employment regulation order are submitted to the Court, the chairman of the committee shall submit a report to the Court on the circumstances surrounding their adoption.

19

(4) The Court may, as it thinks proper, by order give effect to the proposals from such date (subsequent to the date of the order) as the Court specifies in the order.

20

3 (5)(a) Where the Court is not satisfied that it should make an order giving effect to the proposals it may submit to the committee amended proposals which it is willing to accept.

21

4 (b) The committee may, if it thinks fit, re-submit the amended proposals, with or without modifications, to the Court

22

5 (c) The Court may, as it thinks proper, make an order giving effect to the proposals as so re-submitted from such date (subsequent to the date of the order) as the Court thinks proper and specifies in the order or refuse to make an order."

23

Consequent upon the making of an Employment Regulation Order, under s. 48 of the 1990 Act, s. 44 of the Industrial Relations Act,1946provides for the adaptation of contracts of service as follows-

24

2 "(1) The employer of a worker to whom an employment regulation order applies, shall -

25

(a) in case the order fixes remuneration, pay to such worker remuneration not less than the statutory minimum remuneration

26

(b) in case the order fixes conditions of employment, grant to such worker conditions of employment not less favourable than the statutory conditions of employment

27

(2) If a contract between a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) and his employer provides for the payment of less remuneration than the statutory minimum remuneration, the contract shall have effect as if the statutory...

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